STATE OF OHIO v. PAMELA S. MOORE
Appellate Case No. 24957
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
August 10, 2012
2012-Ohio-3604
Trial Court Case No. 2010-CR-2554; (Criminal Appeal from Common Pleas Court)
JEREMIAH J. DENSLOW, Atty. Reg. #0074784, First National Plaza, 130 West Second Street, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
OPINION
Rendered on the 10th day of August, 2012.
HALL, J.
{¶ 1} Pamela Moore appeals from her conviction for aggravated theft. Finding no
{¶ 2} Moore had worked in the mortgage and title insurance business for 23 years when, in 2006, she opened her own title agency. In the new agency, Moore acted as both a real-estate titlе agent and a title-insurance agent. Moore contracted with Chicago Title Insurance Company to be her underwriter. She hired Melissa Brown to help her in the office. Moore also set up a bank account that the agency could use to pay its expenses. And she set up an escrow account to hold money from her clients while their transactions were pending.
{¶ 3} Moore had been renting a home in Centerville. When she fell behind in her rent, her landlord, Phil McBride, started eviction proceedings. Moore asked McBride if she could buy the house, and McBride agreed. They settled on a price of $190,000. At the closing, Moore gave McBride two checks drawn from the escrow account. One check (State‘s Ex. 7), was to Spectrum Real Estate Inc., McBride‘s corporation, for $36,761.59. The other check (State‘s Ex. 8) was to Citizens National Bank for $143,800.32 to pay off the existing mortgage. Moore did not have the money to pay for the house–she had not obtained a loan. Consequently, the money she gave McBride was her clients‘.
{¶ 4} Eventually, a team from Chicago Title‘s parent company visited Moore and reviewed her recоrds. Their investigation revealed several significant problems. One problem they discovered was that Moore had written a $17,000 check drawn from the escrow account to pay CFA Networks for computer equipment and services. Ultimately, the parent company team took over Moore‘s business.
{¶ 5} Moore was charged with one count of aggravated theft under
{¶ 6} Moore appealed. She now assigns five errors to the trial court.
The Disallowance of Surrebuttal Testimony
{¶ 7} After the defense rested, the state called the defendant‘s former employee, Melissa Brown, as a rebuttal witness. The first assignment of error alleges that the trial court erred by not permitting Moore to present surrebuttal testimony to rebut Brown‘s testimony.1 Moore contends that she had a right to present surrebuttal testimony. Alternatively, Moore contends that even if she did not have the right, the trial court still should have permitted it.
{¶ 8} A defendant must be permitted to present surrebuttal evidence (provided it isn‘t merely cumulative or corroborative) if “the prosecution in rebuttal introduces new matter.” State v. Gibbs, 2d Dist. Miami Nos. 83 CA 7, 83 CA 37, 1983 WL 2546, *3 (Nov. 18, 1983); State v. Carrasquillo, 9th Dist. Lorain No. 09CA009639, 2010-Ohio-1373, ¶ 11 (“Surrebuttal is only considered a right when new matters are first introduced on rebuttal.” (Citation omitted.)). The defendant must then be permitted to present evidence that rebuts this new matter–but only the new matter. Id. (“[I]t is only new matter adduced by the prosecution that [the] accused may rebut on surrebuttal[.]“). “‘Rebutting evidence is that given to explain, refute, or disprove new facts introduced into evidence by the adverse party.‘” State v. Carrasquillo, 9th Dist. Lorain No. 09CA009639, 2010-Ohio-5063, ¶ 13, quoting State v. McNeill, 83 Ohio St.3d 438, 446, 700 N.E.2d 596 (1998).
{¶ 9} Moore proffered this surrebuttal testimony: “[W]e would have a witness who would directly dispute aspects of Missy Brown‘s testimony, most specifically those relating to
{¶ 10}
{¶ 11} In addition to the proffer, in her brief, Moore identifies a list of “new” facts that she says the state introduced with Brown‘s rebuttal testimony that her surrebuttal testimony would contradict. Most of the “new” facts identified by Moore are no more than a variation on the issues previously presented rather than new evidence. For instance, appellant argues:
{¶ 12} (a) Brown said that Moore was the only person who issued checks. But Moore‘s own testimony had indicated that “I cut the checks” (Tr. 385) for the unfunded
{¶ 13} (b) Brown said that, in 2007, the business moved from Springboro in Warren County to West Carrollton in Montgomery County. But Moore had testified that the business opened in Springboro in April 2006 where it operated for six months before moving. (Tr. 373). She also said that the move ocсurred well after October. (Id.);
{¶ 14} (c) Brown said that the business was shut down during the first week of August 2007 by a team from Chicago Title Insurance Company. But Steve Hamlin, the director of internal investigations for Chicago Title‘s parent company, Fidelity National Financial, had already testified that he and his team met with Moore during the first week of August 2007, and that, after their examination, Fidelity took control of Moore‘s escrow accounts. (Tr. 318 & 330);
{¶ 15} (d) Brown said that she and another person were going to start their own title agency after Moore‘s business was shut down. But Moore had already similarly testified that Missy Brown had taken everything from her office necessary to start her own title company. (Tr. 397);
{¶ 16} (e) Brown said that after the move to Montgomery County, CFA Networks continued to remedy their computer problems. Moore‘s testimony indicates the $17,000.00 paid to CFA included a service contract. (Tr.372). A fair reading of her testimony indicates this continued after the move to Montgomery County. (Id.) Moreover, Todd Roberts, a CFA employee at the time, had testified that Dedicated Land Title was an ongoing client of CFA before and after the October 2006 $17,000.00 check. (Tr. 188);
{¶ 17} (f) Brown said that Moore herself retrieved a document from the filing cabinet immediately before the $17,000 check was written to CFA Network. Moore had testified that Brown gave her the check, which Moore then wrote. (Tr. 371).
{¶ 18} Although the foregoing two accounts on the same subjects differ, if this is “new ” evidence conferring a right to surrebuttal, any different contradicting evidence on the same subject would be subject to endless re-contradiction.
{¶ 19} There are three facts from Brown‘s testimony, identified in Moore‘s brief as “new,” which are arguably new: (1) that business began to slow in January or February 2007, (2) that around the same time Moore told Brown to hold checks rather than send them promptly to lenders, and (3) that Brown noticed other irregularities in 2007 that caused her to call prosecutors. (Tr. 440-41). Significantly, appellant did not proffer that she had any contradictory evidence to offer on these issues. Nevertheless, even if these are new facts, and even if appellant had contradictory evidence, Moore was not prejudiced by the exclusion of testimony rebutting them. These facts, which are actually interrelated into one issue—why Brown called the authorities—have little, if any, bearing on whether Moore committed the charged offense five or six months earlier. This evidence is so far removed from evidence of Moore‘s guilt that the jury‘s verdict certainly would have been the same. Accordingly, Moore has suffered no prejudice by the exclusion of this surrebuttal.
{¶ 20} In addition, some of the “new” facts Moore identifies were brought out by the defense during Brown‘s cross examination. But Moore plainly is not entitled to rebut these facts. A defendant is entitled to surrebut only new matter introduced “by the prosecution in rebuttal.” The defendant cannot rebut matters she herself introducеd. Weimer v. Anzevino, 122 Ohio App.3d 720, 726, 702 N.E.2d 940 (7th Dist. 1997) (“[A]ppellant cannot rebut evidence that was introduced by appellant‘s own counsel. Appellant may rebut evidence adverse to her side, but that evidence must be introduced by the opposing party and not by appellant herself.“).
{¶ 21} Finally, we cannot say the trial court abused its discretion by disallowing surrebuttal. “If testimony introduced by the prosecution is merely in rebuttal, it is discretionary with the trial court whether to permit surrebuttal.” Gibbs at *3, citing State v. Lett, 106 Ohio App. 285, 154 N.E.2d 445 (2d Dist.1958). “A court does not, ipso facto, abuse its discretion in denying a criminal defendant the opportunity to present surrebuttal testimony.” (Emphasis sic.) State v. Spirko, 59 Ohio St.3d 1, 28, 570 N.E.2d 229 (1991). The trial court‘s rationale for exclusion appears to be that the proposed surrebuttal was not relevant or would merely go to credibility rather than whether Moore committed the charged offense. The court‘s rationale is a valid concern to avoid a diversion into collateral matters.
{¶ 22} The first assignment of error is overruled.
Denial of Motion for Acquittal for Failure to Prove Venue
{¶ 23} The second assignment of error alleges that the trial court erred by overruling Moore‘s motion for acquittal based on improper venue. Moore says there are two alleged transactions that constituted the state‘s case against her–buying the house and paying CFA Networks–and both occurred while Moore‘s business was still in Warren County. She contends the state failed to prove that venue for either was proper in Montgomery County.
{¶ 24} When a charged offense involves taking property unlawfully, venue is proper
{¶ 25} While there is little evidence establishing a connection between Montgomery County and the escrow-account funds that Moore used to pay CFA Networks, the trial court‘s explanation for rejecting Moore‘s venue challenge got the analysis right:
It‘s problematic in that we have a single count indictment here alleging an aggravated theft. You‘re trying to segregatе out one transaction. I don‘t
think there‘s any evidence before the Court that the check was written or presented in Montgomery County, but nonetheless, it‘s not sufficient to grant a directed verdict on the offense that‘s charged in the indictment. It‘s simply a matter that goes to the weight of the evidence. And the Court finds that there‘s ample evidence that the transaction that did clearly exceed $100,000. [sic] If the Jury believes that the elements apply, it does support the conviction on the charge that has been filed.
(Tr. 502-503).
{¶ 26} We note too that even if the CFA Networks transaction could be considered a separate offense, venue in Montgomery County would still be proper either because the victims–the escrow-account fund owners–are the same as those in the house-purchase transaction, see
{¶ 27} The second assignment of error is overruled.
Proving the Escrow-Account Funds’ Owner
{¶ 28} The third assignment of error alleges that the evidence presented is insufficient to find Moore guilty of aggravated theft because the evidence fails to establish that the owner of the escrow-account funds identified in the indiсtment, Chicago Title Insurance Company, in fact owned the money. The state concedes that Chicago Title was not the escrow-account funds’ owner, but it contends that it did not need to prove who owned the funds.
{¶ 29} Evidence is legally insufficient to find guilt if a rational trier of fact could not have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The identity of the victim is not an essential element of aggravated theft. State v. Clayton, 2d Dist. Montgomery No. 22937, 2009-Ohio-7040, ¶ 10-27 (concluding that the evidence was sufficient to find the title-insurance agent guilty under
{¶ 30} Moore‘s argument, though, is not really a sufficiency challenge. Rather, the argument seems to be that because the indictment identifies Chicago Title as the owner the state was required to prove the same. This is incorrect.
{¶ 31} A difference between an allegation in an indictment and the evidence presented at trial may be a problem if the difference is in “a matter essential to the chargе.” State v. Smith, 2d Dist. Montgomery No. 24402, 2012-Ohio-734, ¶ 30, citing State v. Brozich, 108 Ohio St. 559, 141 N.E. 491 (1923), paragraph one of the syllabus. The name of the victim is not a matter essential to the charge of aggravated theft: “Ohio law does not require that a victim be named in an indictment when the identity of the victim is not an essential element of the crime.” State v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 35, fn. 7 (8th Dist.).
{¶ 32} Even if the name were essential,
{¶ 33} Finally, Robert Smith, assistant legal counsel to the State Auditor, testified about the nature of a title company escrow account. Money in the account is not specifically identifiable to an individual. He referred to it as a “fungible bulk.” (Tr. 298). Therefore, on August 7, 2006, when Moore issued two checks drawn on the escrow account in the approximate sum of $180,000.00 (State Ex.s 7 & 8), at a time when the account had a balance
{¶ 34} The third assignment of error is overruled.
Secondary Evidence to Prove the Contents of the Letter
{¶ 35} The fourth assignment of error alleges that the trial court erred by nоt permitting Scott Moore, Defendant-Appellant Moore‘s former husband, to testify about the contents of a mortgage pre-approval letter that Moore claims she received from Union Savings Bank, which she says Scott saw and read. “The decision whether to admit evidence is left to the sound discretion of the trial court, and a reviewing court will not override that decision absent an abuse of discretion. An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude by the court.” Baker v. Chrysler, 179 Ohio App.3d 351, 2008-Ohio-6032, 901 N.E.2d 875, ¶ 20 (2d Dist.), citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 129-130.
{¶ 36} In her brief, Moore contends that Scott‘s testimony should have been permitted under
{¶ 37} The stаte had objected to Scott‘s testimony about the contents of the letter on the basis of hearsay. Defense counsel told the court that the letter “was the preapproval document that Pam Moore got.” (Tr. 344). Scott, said counsel, “is going to come in and say that he saw this preapproval document.” (Tr. 345). The trial court replied, “What personal knowledge would he have? I mean he can‘t testify about a document. He can testify about preapproval if he is a party to the loan.” (Tr. 345). Counsel‘s position was that “a document can be testifiеd to about hearsay [sic] if it can‘t be produced, if it hasn‘t been kept in the ordinary course. It‘s like a witness unavailable.” (Tr. 347). “But,” said the court, “you‘re trying to prove the contents of the document without the document. And the only person that can testify to that frankly is your client then if she was the loan applicant. You can‘t do it through other people.” (Tr. 347). The court explained that “if you‘re going to try and establish that there was a loan commitment made you‘ve got to either do that with a document that exists or you have to do it through her testimony or through a person at the bаnk who was a part of the transaction.” (Tr. 349). Counsel disagreed, saying that “a missing document, one that cannot be found, is like a Declarant unavailable.” (Tr. 349). “No, no,” said the court, “you‘re trying to create something out of oil [sic] cloth. You can‘t do it through hearsay testimony of somebody who say[s], ‘I saw a document.’ And matter of fact, he can‘t testify just because he saw a document to the contents of the document even if the document exists. * * * You‘ve got to authenticate that document through a person with personal knowledge of the contents.” (Tr. 349-350). To this Moore replied, “I would agree entirely with that, but not
{¶ 38} Moore took the stand instead of Scott and said that she received a preapproval letter from Union Savings Bank. After she finished testifying, Moore again tried to admit Scott‘s testimony about the letter‘s contents. This time, Moore‘s counsel argued only that Scott‘s testimony was admissible hearsay: “I think hearsay would be admissible after they tried to impeach my client, which they did. They tried to challenge her as to whether or not this even existed, and so at that pоint then it‘s allowed in to corroborate.” (Tr. 415). But the trial court did not allow it: “I‘m still not going to let him testify as to the contents of a document that doesn‘t exist.” (Tr. 415).
{¶ 39} “‘Proving the contents of a writing presents problems with hearsay, authentication, and the best evidence rule.‘” SFJV 2005, L.L.C. v. Ream, 187 Ohio App. 3d 715, 2010-Ohio-1615, 933 N.E.2d 819, ¶ 46 (2d Dist.), quoting State v. Carter, 4th Dist. Ross No. 99 CA 2479, 2000 WL 1466189, *5 (Sept. 26, 2000). All three rules are prerequisites to admission, meaning that all three must be satisfied before content evidence may be admitted. Here the trial court first excluded Scott‘s testimony because the letter was not authenticated. Accord id. at ¶ 47 (“Documents must be authenticated or identified prior to their admission into evidence,” citing
{¶ 40} Regardless, even if the trial court did err by excluding Scott‘s testimony about the letter, Moore suffered no prejudice. Moore herself testified that she received the preapproval letter:
Q. After you started the loan process * * * did you receive any approval?
* * *
A. Yes, I did. I received the letter at my home.
Q. Did Scott know that you had started this loan process?
A. No.
* * *
Q. Did you keep it a secret from Scott what was going on?
* * *
A. I kept that secret from him.
Q. Was there ever a time that he found out that you had been approved for a loan?
A. Yes.
* * *
Q. Do you know how he found out?
A. I wasn‘t home and he came in and I had–I worked out of–on my kitchen table I had a lot of like papers and documents every night. * * * I had a file and it was my personal file and it was on the table. And he got to it before I got home and he saw the letter.
(Tr. 362-364).
{¶ 41} Also, after Moore testified, Scott took the stand. The trial court did allow some oblique testimony from him about the letter. Defense counsel asked Scott about a day he stopped at Moore‘s house:
Q. Is that also the day that you saw a certain piece of
A. That was actually a couple of days later. I had stopped off into the house.
Q. What did that piece of paper cause you to do?
A. The paper that I saw on the table crеated an issue, an argument between me and Pam.
* * *
Q. All right. After you saw that piece of paper, did you know that you and Pam were done for good?
(Tr. 417-418). Scott here unmistakably refers to the preapproval letter, corroborating Moore‘s testimony. Had Scott been allowed to testify about the letter more directly, the outcome of the trial would not have been any different.
{¶ 42} Moore contends, though, that the trial court deprived her of her right to remain silent and not testify. She asserts that, because Scott could not testify about the letter, she was essentially forced to testify in his place. “The Fifth Amendment right against self-incrimination is a personal right ‘that can only be invoked by the individual whose testimony is being compelled.‘” State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 29, quoting Moran v. Burbine, 475 U.S. 412, 433 fn. 4, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). There is no self-incrimination problem, though, if evidence is improperly admitted and a defendant decides to testify to lessen or overcome the impact of the improperly admitted evidence. State v. Hawn, 138 Ohio App. 3d 449, 467, 741 N.E.2d 594 (2d Dist.2000). The defendant‘s testimony is “not compelled in the constitutional sense or
{¶ 43} The fourth assignment of error is overruled.
The Jury Instructions
{¶ 44} The fifth and final assignment of error alleges that the trial court erred by giving the jury an incorrect and misleading instruction. Moore contends that the instruction is misleading and confusing and fails to state the applicable law fairly and accurately. “The trial court retains discretion on how to conform the jury instructions to the evidence presented at trial.” State v. Condon, 152 Ohio App. 3d 629, 2003-Ohio-2335, 789 N.E.2d 696, ¶ 90 (1st Dist.), citing State v. Guster, 66 Ohio St.2d 266, 421 N.E.2d 157 (1981). The trial court here did not abuse its discretion.
{¶ 45} Jury instructions “‘must be a correct, clear, and complete statement of the law applicable to the case.‘” McBride v. Quebe, 2d Dist. Montgomery No. 21310, 2006-Ohio-5128, ¶ 50, quoting Roberts v. State Farm Mut. Auto. Ins. Co., 155 Ohio App.3d. 535, 2003-Ohio-5398, 802 N.E.2d 157, ¶ 48 (2d Dist.). And they “should be tailored to the facts of the case.” (Citation omitted.) Condon at ¶ 90.
{¶ 46} The instruction Moore challenges is this one:
A title agent must keep funds in an escrow account separate from funds being held by the agent in any other capacity. A title agent is allowed to hold the funds in an escrow account in trust for a purchaser until the date of the closing. A title agent has no possessory interest in the funds in an escrow
account. A title agent merely maintains the escrow account in order to store funds belonging to other persons until the date the funds are needed to complete a real estate transaction. After a closing has been completed, a title agent may then claim a portion of the funds as money earned by the agent as his fees or premiums. An escrow agent may not knowingly make a disbursement from an escrow account unless all of the funds necessary for the disbursement had been deposited or transferred electronically into the escrow account and are available for withdrawal or disbursement or had been physically received by the agent prior to the disbursemеnt and are intended for deposit no later than the next banking day after the date of disbursement.
{¶ 47} The state had specifically asked the trial court to give an instruction like this, citing our opinion in State v. Clayton, 2d Dist. Montgomery No. 22937, 2009-Ohio-7040. The Clayton defendant was also a title-insurance agent and also had been convicted of aggravated theft for taking escrow-account funds for his business and personal use. On appeal, he challenged his conviction based on the sufficiency and manifest weight of the evidence. We said the evidence showed that the defendant clearly had violated
{¶ 48} Moore asserts that the instruction places an undue emphasis on civil regulations. The jury, she says, may have found her guilty because it found that she violated a
{¶ 49} The fifth assignment of error is overruled.
{¶ 50} There being no merit to any allegation of error, the judgment of conviction is affirmed.
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Jeremiah J. Denslow
Hon. Sumner E. Walters
(Sitting for Hon. Mary K. Huffman)